A group of Bisexual Lawyers and Law Professors called “BiLaw,” of which I am a founding member, just submitted an Amicus Brief in the 4 marriage cases (click here to read the brief). I wrote the initial draft of the second section based on my paper and article published here previously. Professor Nancy Marcus wrote the first section, asking the Supreme Court to end bi erasure.
Two major points of the brief:
1) Bisexuals are not reflected in litigation for the rights of lesbian, gay, and bisexual people. This brief urges the court to reverse this trend of bisexual exclusion.
2) Inclusion of bisexuals strengthens the argument that marriage bans should be subject to heightened scrutiny as sex discrimination.
A video campaign of interest to fellow bisexuals wishing to dispel the myth that it’s a phase: Still Bisexual
It is 6:30am PST on Monday June 24. Today, again, we are waiting with bated breath for the decisions from SCOTUS (“Supreme Court Of The United States,” for the uninitiated) on the Windsor and Perry cases. They may be announced today at 7am PST (10am Eastern). Or they may be announced later this week on Thursday or another date added by the court.
Here is how I’m watching:
I have one browser window open to http://www.scotusblog.com/. It is a live up to the second blog posted from the gallery of the Supreme Court on the decisions as they are announced.
I have another browser window open to http://www.supremecourt.gov/. Within seconds of the blog announcing an opinion is being released today I can hit reload and a link to an electronic version of the decision will be posted there.
Here is the blog post I wrote last Thursday about how it feels to wait for this: https://tobyshome.wordpress.com/2013/06/20/supreme-court-ruling-on-marriage-it-could-be-today/
Enjoy the excitement and watch with me!!!
- Supreme Court Ruling on Marriage – It Could Be Today (tobyshome.wordpress.com)
This morning at 6:30am Pacific time we might find out the SCOTUS rulings on DOMA (Windsor v. ) and Prop 8 (Perry v.) … or not. I just woke up from a dream that I overslept, and when I’d awoken everyone else knew. I walked out into the street and tried to tell from the parades in the street what the ruling was. They weren’t celebratory. They weren’t devastated. They were hopeful. And that’s how I realized (in the dream) that all we knew at 6:30am was that we would find out that day. But we might really know the answer at 6:30am.
It’s 4:15. My dream woke me up at 3:45am and I finally realized only blogging about the marriage cases would get me back to sleep. Waiting for these rulings is not doing wonders for my sleep. Honestly, neither is the fact that I had a job interview yesterday, my house is going on the market this week, and I have to respond to some questions about my 2011 taxes in the next 7 days. There’s other stuff too. Kid’s health insurance issues. The usual stuff people have to deal with in life. I guess that’s the point, isn’t it? All of us have to deal with supporting our families, surviving the housing crisis, paying taxes, getting health care for our kids. But only those of us with same-sex spouses have to ALSO worry about whether our marriages will be validated under state and/or federal law, which, by the way, also affects our jobs, housing, taxes, and kids’ health care, among other things.
It’s been a long ten years.
On July 19, 2003 I married my wife. Beautiful ceremony. You should have been there. But we only got a few rights under California Registered Domestic Partnership. That pissed me off enough to get active. I hadn’t been that active before, not in marriage equality. Not until I fell in love with the woman of my dreams and realized we were getting the short end of the stick compared to if, say, I had fallen in love with and married the man of my dreams. I’m bisexual, it could have happened. But it didn’t. The person of my dreams was a woman. So everything was that much harder.
The Defense of Marriage Act (DOMA) had been passed by Congress in 1996, keeping the US government or other states from being required to recognize any same-sex marriage that a state might allow. Not too long after our wedding Massachusetts became the first state to allow same-sex marriage. I’m from Boston. Unfortunately my wife was not about to move to Massachusetts. Something about shoveling snow. It’s not just that you can’t “take California out of the girl.” You really can’t take the girl out of California.
Fast forward 10 years. The California legislature had passed marriage bills several times only to have them vetoed by the governor. The California supreme court had ruled for marriage equality, thousands of couples got legally married (including my wife and me, on our 5 year anniversary), and then the voters passed Proposition 8 which forbid any more marriages while leaving those that already occurred legally intact. Not that our neighbors believed that. They all insisted that since Prop 8 had passed we weren’t really married. Not the law, but definitely the perception of many of our neighbors.
You can see where I’m going with this. Not only are Nine Very Important People about to decide whether the Federal Government has to treat my family as a real family, they are also about to decide whether the rest of California will believe our marriage really exists. And more importantly whether other same-sex couples will be allowed to marry legally in California. I really like going to weddings, and this could be a busy summer for weddings. Or not.
The possible outcomes are many. You can read more about them here: http://www.scotusblog.com/case-files/cases/hollingsworth-v-perry/ and http://www.scotusblog.com/case-files/cases/windsor-v-united-states-2/
It’s after 5:30am. The sun is up, a little. In less than an hour the Supreme Court may announce that DOMA is unconstitutional and the Federal Government has to recognize my valid state marriage. It may announce that California isn’t allowed to grant the right to marry and then take it away on the discriminatory basis of a person’s sexual orientation or gender. It may very well say that they aren’t in the business of deciding these things and dismiss based on standing or as “improvidently granted.” If a decision comes today I will be at the Sacramento news conference at the LGBT Center and the rally on the on the west steps of the Capitol at 6pm: https://www.facebook.com/events/598575030160877/
Or it may not announce today. The Supreme Court may stay silent another day. And then we will wait until next Monday 6/24, or next Thursday 6/27. In which case I will go work on my house some more, and deal with the taxes, and spend time with my family… wondering if the decision will bring joy or tears. Hopefully I’ll be able to get some sleep.
I could have written a lot about the court, the precedents, and the possible legal outcomes. I’ve done so before. I will do so again. But when these cases wake me up in the middle of the night they come down to family, and being treated fairly instead of feeling bullied by the law, and whether today will bring joy or tears, parades of devastation or celebration … or possibly just more confusion.
- No Prop 8/DOMA Supreme Court Decisions–Watch Continues on Thursday (blogs.kqed.org)
- How can same-sex marriage not be gender-based classification?
- Why LGBT groups prefer DOMA be held Sexual Orientation (not Gender) Discrimination
p.s. It’s 7:18am Pacific… the court announced 3 opinions. None are the marriage cases. No more decisions today. It’s time to go get some sleep… or drink a lot of caffeine and get busy with my day… I’m not sure which.
My daughter is 12. She has been “pushing the boundaries” of the rules of our house and her school lately. I had this song lyric in the back of my mind… Hold the Line… something something something. Couldn’t remember the band or the rest of the song.
The next day, still thinking about this problem I was having with my kid and trying to remember to just “hold the line,” I turned on the radio and there it was playing loud and clear. Toto. “Hold the Line… Dah da da da… Love isn’t always on time… Whoa whoa whoa…” The words fit so perfectly to how things were going with the kid. It’s not in the way that I hold her, or the way I say care, or how I’ve been treating her friends, or even that I stay til the end…
What helps my kid learn what she needs to learn in life, what I am trying to teach her, is that I hold the line. Like army generals calling on the troops to “hold the line.” This is the ground I will not surrender. No matter how much I am fired upon. No matter how scared I am. No matter how much easier it would be to back off and give in and let her take over that territory. I hold the line.
If you refuse to do your homework,
I will not give you the treat you are hoping for.
If you yell at me,
I will not back down and let you have your way.
If you have “intolerable” behavior,
I will not allow you any tv or computer or other fun stuff for the rest of the day.
The rules are the rules and they will remain the rules. Your world is safe, it is predictable, and what we expected yesterday is what we expect today. The rewards for good behavior will be what they have been in the past. The consequences for bad behavior will be what they have been.
It’s not in the words that I tell my girl. It’s not in the way I look or the things that I say that I’ll do.
It’s what I actually do. Stand there. Don’t budge. Hold the line. No matter how many years she has known the rules, she will break the rules, and it’s my job to remind her they are still there.
Hold the line… Teenagers don’t learn on time… Whoa whoa whoa…
Dory has to swim the entire ocean. Her advice? “Just keep swimming, just keep swimming, just keep swimming, swimming, swimming…” kinda sing-songy, and with a goofy smile.
I didn’t do it to get a laugh, or because I thought someone else needed to hear the message. I did it because I needed to hear the message. ME.
IT’S NOT JUST ME –
But it’s not just me. Everybody (even non-legal folks) is probably aware there is a glut of law school grads and very few lawyer jobs to go around. And everybody is definitely aware of all the people, all kinds of people, who are out of work and are still job hunting.
Not you? Probably one of your friends. Think for 5 seconds… yup, that guy… that gal… you know the one. Still looking.
Everybody has advice. Look here. Look there. Do this. Do that.
This is my advice: you know what to do already. Just keep doing it. Don’t give up. Don’t EVER give up.
Well, maybe for a day. I give up about one day every few weeks. I get depressed. I watch TV all day. This is what I posted to “close friends and family only” the last time that happened: “looking for a job sucks. wondering how to pay rent or buy food sucks… I think I will stay in my pajamas on the sofa all day and watch as many episodes of some TV show in a row as I can. maybe West Wing (so I can pretend I work there) or some sci fi thing (so I can completely escape this planet).” It’s ok to take ONE day off, and to share this stuff with your close friends and family. Not so much in “public” posts that will be read by potential employers.
To be clear: I only just started looking, really. It looks bad because I’ve been out of school since May, but it’s not like I’ve been job hunting diligently since May.
Most top 15% law students like I am who want the kind of job I want (public interest) look for jobs like this: Law Review, summer internship, get fellowship sponsor, submit fellowship applications and judicial clerkship applications in September, graduate in May, take July bar, start Fellowship/Clerkship in August. Celebrate bar results in November.
What I did was this: juggle special needs child and law school classes, no time for Law Review (required for most judicial clerkships), intern in the fall and spring while kid is in school, miss fellowship deadlines in September, graduate in May, take July bar, deal with kid starting 7th grade in August while I worked a godsend part time contract job at a small firm where they didn’t mind that my kid was being suspended every other day requiring me to leave work and go pick her up, miss deadlines for fellowship applications AGAIN, get kid switched to school where she is doing well and staying in school so I can finally work full time (whew!)
Last month when the part time contract job ran out of work for me I got serious with job hunting. Serious as in: Monday-Friday 9am-5pm I job hunt. I job hunt like I studied for the bar only not quite as many hours (I did pass, by the way).
Make a list. Execute the list. Don’t stop. Don’t think about passing (getting hired). Just keep executing the list. Do the footwork. Let god/fate/whatever take care of the results. If I get worried, I just keep swimming.
DO EPIC SHIT (even though it doesn’t pay) –
The other advice I have, beside “keep on swimming,” is Do Epic Shit. I add “even though it doesn’t pay.” Volunteer for a really great project. It IS ok to post about THIS in public posts that potential employers will see. Get your name out there. But even more importantly: keep your spirits up by remembering that you are a force of awesomeness! I do this blog (especially my legal writing) to keep active in my field, and I volunteer for the One-Day-Divorce-Clinic (and even got to be on TV doing it). It’s kind of like the “do what you love” saying, without “the money will follow.” Because the money only follows if you keep job hunting too. Don’t volunteer so much that you forget to keep job hunting.
Also, don’t spend TOO much time on Social Media(tm). Schedule yourself a little break to chat online, read my awesome blog, and then log off and get back to job hunting work. Like I am doing. Right. This. Minute.
In my first legal blog post “How can same-sex marriage not be gender-based classification?” I explained why I believe the should hold that DOMA is gender-based discrimination (rather than discrimination on the basis of ) and therefore unconstitutional. If you made it to the end of that article (I know some of you lay-persons gave up on the legalese and nodded off) you will have seen that I promised to continue this discussion by addressing why LGBT groups don’t want lawyers and judges to use the gender-based classification argument in challenging DOMA.
One of the great advantages, and also the great tragedies, of graduating from law school is that I gained the ability to really and truly argue two opposing sides of the same argument. Ok, maybe some of you were on the high school debate team and got the same ability without accumulating mounds of student loan debt. I wasn’t on a high school debate team. I’ve always been very opinionated, and could only argue MY side of an argument. I’m still opinionated, but if it’s logical and can be supported by the facts and the law, I can argue the other side.
MY side of the argument, let’s be clear, is that the Supreme Court should hold that DOMA is gender-based discrimination. It’s logical. It’s winnable. It’s supported by existing precedent.
But very smart and ethical people in the LGBT community, even some of the people who I used in the bedtime story about the four bisexual couples in my other blog on the subject, feel very strongly that Marriage Equality should be fought and won as discrimination on the basis of sexual-orientation. My paper argues specifically for sex discrimination as a winning argument against DOMA and other marriage bans, rather than a general all purpose argument against all anti-gay laws.
My argument has a BIG flaw that I will freely admit: it does NOTHING to help pass protections like ENDA and address other discrimination that truly is discrimination ONLY on the basis of sexual orientation. Such as: “you are gay, so you are fired.” Here is why:
As of today, April 2013, the US Supreme Court has not decided whether discrimination on the basis of sexual orientation should get ANY kind of heightened scrutiny. Level of scrutiny is about how closely the court looks at the law in deciding if it is constitutional.
All laws discriminate. If you are poor, for instance, you pay lower taxes than if you are rich. That is a because of federal law that discriminates on the basis of wealth. Wealth is a “non-protected status” (as opposed to race, which is “suspect” and gender which is “quasi-suspect”). When a law discriminates against someone on the basis of a non-protected status it is analyzed under “rational basis scrutiny“. Under rational basis, a law only has to be rationally related to a legitimate governmental purpose in order to be constitutional.
What usually fails the rational basis test? Animus. In City of Cleburne v. Cleburne Living Center the Supreme Court held that a law that discriminated against persons on the basis of their membership in a class of persons based on developmental disability, a non-protected status, was nonetheless unconstitutional because it was based solely on irrational prejudice against the “mentally retarded” (an offensive term but the one in use at the time). The Supreme Court made a similar ruling in Romer v. Evans, holding that the sole purpose of Colorado’s Amendment 2 was irrational prejudice against gays and lesbians (and bisexuals, but the court didn’t include us in the ruling, even though the law did include us in the discrimination).
So far the Supreme Court has never decided that discrimination on the basis of sexual orientation requires “heightened scrutiny” or that lesbians, gays, and bisexuals (LGB) are a “suspect” or “quasi-suspect class“. The hope is that the marriage cases will be the time for that to change.
There is hope for the sexual orientation argument in the trend in state supreme court cases towards defining LGB people as a suspect class, or at least applying heightened scrutiny to discrimination against them in spite of not being a traditionally suspect class such as race. A broad reading of Romer shows the Colorado Supreme Court held sexual orientation must be subject to strict scrutiny under the equal protection clause, a test the amendment failed. In Evans v. Romer (the state case that became Romer v. Evans when taken to the US Supreme Court) the Colorado Supreme Court held state constitutional amendment to remove all protections for lesbian, gay, and bisexual people must be subject to strict scrutiny.
Although the U.S. Supreme Court affirmed the judgment in Romer under rational basis, it never specifically disaffirmed the applicability of strict scrutiny, saying the amendment “fails, indeed defies, even this conventional inquiry,” referring to the easiest test, that of rational basis. This implied, to me and some other scholars, that Amendment 2 might have been decided under a higher level of scrutiny, but the court didn’t have to go as far as setting a higher level of scrutiny because the law failed even under the lowest level. Additionally, the US Attorney General recently stated “that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny” than mere rational basis.
MARRIAGE IS ALL ABOUT US; ORIENTATION IS ALL ABOUT ME –
My argument for holding DOMA as sex discrimination is based on my understanding, as a bisexual, that I am not being discriminated against based on my orientation. There are no check boxes on the marriage application for “gay,” “bisexual,” or “straight.” I could legally marry a man. It does not demean my existence as a bisexual person to marry a man. Marriage, however, is not about just ME. It is about US. My wife and I. Two women in love. My gender classification, in relation to her gender classification, is where the discrimination lies.
But that is not the end of the story. Arguing for the other side of the debate team: it DOES demean me as a bisexual to not give me the choice to legally marry a man or a woman. “The essence of the right to marry is freedom to join in marriage with the person of one’s choice.” (Perez) And so DOMA IS discrimination on the basis of my sexual orientation. It is even more clearly discrimination on the basis of sexual orientation to people who ONLY want to marry a person of the same sex: gay men and lesbian women (the only people who the courts or the marriage equality organizations ever talk about, by the way). But DOMA is also demeaning to bisexual, transgender, and intersex people because it takes away our freedom of choice. It is discriminatory on the basis of sex AND gender AND orientation.
THE RISK –
The problem with arguing sexual orientation discrimination against DOMA in the Windsor case currently before the Court is that we still have no idea what level of scrutiny the US Supreme Court will settle on, and up to this point it has only been willing to decide sexual orientation cases under rational basis. The same risk exists in any state Supreme Court that has not yet decided what level of scrutiny to apply.
The answer of level of scrutiny for sex discrimination, however, is well settled law and combined with the determination in Loving that statutes punishing a person of one race for marrying a person of a different race are in fact race discrimination, it follows that punishing a person of one sex for marrying a person of the same sex is in fact sex discrimination. Therefore the question of “what is the standard of review” for statutes burdening marriage between members of the same sex should be easy to answer. The standard of review in Federal Court is intermediate scrutiny based on sex discrimination.
Even if we lose the gamble shooting for a higher level of scrutiny, there is the fallback argument that a statute fails even rational basis because it is not rationally related to any legitimate government end and thus fails to meet even the rational basis test, because the real interest served by the statute is animus against LGBT people. All laws not determined to be infringing on a fundamental right or classifying based on a suspect or quasi-suspect group are subject to rational basis review. Some laws are so irrational or absurd on their face it is clear they can be motivated by nothing other than animus or prejudice against a group. The danger of relying on a rational basis test is that it is too easy to find some rational basis supporting a statute. In the case of marriage laws there are factors other than animus, such as sincerely held beliefs that procreation is the purpose of marriage, and only one factor need be found a rationally related legitimate interest to allow the law to stand.
However, if the Court DOES decide that LGBT people are a group that has been subjected to a history of invidious discrimination and therefore laws that classify on the basis of sexual orientation should be subjected to heightened (intermediate or strict) scrutiny, that is a VERY BIG WIN. Because the next time a case comes up where a person is discriminated against on the basis of sexual orientation (i.e. “you are gay so you are fired”) the previously decided case will be precedent supporting finding the act or statute unlawful.
So what’s the best thing to do? Hope for both. Hope the court finds gender-based discrimination (because it is winnable) and orientation-based discrimination (because it is a bigger win for LGBT people), and wait and see what happens.
What do I think the court will decide?
Seriously? This is not a fortune telling column. I have no idea.
For more on this topic, read my paper: “Bisexual Marriage”: A Sex Discrimination Argument for Heightened Scrutiny of Same-Sex Marriage Bans …particularly if you want to find out more details about how the Loving v. Virginia interracial marriage decision addresses the fact that DOMA affects men and women equally and how Justice Scalia’s dissent in Lawrence v. Texas made the case for arguing a sex discrimination claim against DOMA and other marriage bans (topics on which I might write additional blog posts).
 In Re Marriage Cases, 183 P.3d at 440 (California Supreme Court held discrimination on the basis of sexual orientation subject to strict scrutiny when invalidating law disallowing same-sex marriage as violating equal protection under state constitution); Evans v. Romer, 854 P.2d 1270 (Colo. 1993) (Colorado Supreme Court held state constitutional amendment to remove all protections for LGB people subject to strict scrutiny).
 Louis Michael Seidman, Romer’s Radicalism: The Unexpected Revival of Warren Court Activism, 1996 Sup. Ct. Rev. 67 (1996).
 Although the U.S. Supreme Court affirmed the judgment on different rationale than that of the state supreme court, it never specifically disaffirmed the applicability of strict scrutiny, saying the amendment “fails, indeed defies, even this conventional inquiry,” referring to the easiest test, that of rational basis. Romer, 517 U.S. at 632 (emphasis added).
 Statement of the Attorney General on Litigation Involving the Defense of Marriage Act, Department of Justice, Office of Public Affairs, (February 23, 2011) http://www.justice.gov/opa/pr/2011/February/11-ag-222.html
 United States v. Virginia, 518 U.S. at 519.
 Romer 517 U.S. at 631.
 Romer, 517 U.S. at 632; Cleburne 473 U.S. at 448-49.
 For instance see Standhardt v. Superior Court of Ariz., 206 Ariz. 276, 287 (Ariz. Ct. App. 2003) (holding “the reasonableness of the link between opposite-sex marriage, procreation, and child-rearing.”)
- How can same-sex marriage not be gender-based classification? (tobyshome.wordpress.com)